1. OCCUPATIONAL SAFETY AND HEALTH ISSUES
BY Justus B. Nyakego

2. INTRODUCTION
Like all other Acts of parliament Occupational Safety and Health Act, 2007 (OSHA, 2007) is subordinate to The Constitution of Kenya, Enacted in 2007, OSHA,2007 is still effective by virtue of section 7 of the 6th Schedule of the Constitution. Article 41 of the Constitution gives right to every individual to entitlement of reasonable working conditions. Among the reasonable conditions entitled to workers include good occupational safety and health conditions at workplaces.

3. Occupational Safety and Health Act, 2007 (OSHA, 2007).
The OSHA, 2007 repealed the Factories and Other Places of Work Act, Cap. 514.
Has much more elaborate provisions for health, safety and welfare of workers.
Has 14 parts.
Act is applicable to every workplace.
Persons and institutions approved for the purpose of health and safety at workplaces operate within prescribed codes of practice.
Content of some of the codes of practice may be admissible as evidence in the court of law.

4. GENERAL DUTIES 1. General Duties of Occupiers/Employers
Provide and maintain of safe plants and systems at the workplace. Ensure absence/elimination of risks at the workplace. Provide information to employees to ensure safety and health at the workplace. Provide and maintain the workplace in a safe and healthy state. Carry out the workplace risk assessment. Send a copy of the risk assessment to the Directorate of Occupational Safety and Health Services (DOSHS)

5. Stop any hazardous activities
Stop any hazardous activities. Register the workplace with the Directorate of Occupational Safety and Health Services. Prepare safety and health policy statement and submit a copy to the Directorate of Occupational Safety and Health Services. Bring the content of the safety and health policy statement to the attention of all employees. Provide adequate egress and access at the workplace to persons not being his employees. Prevent environmental pollution. Send notice of accident occurrence, cases of occupational diseases and dangerous occurrence to DOSHS.

6. A copy of a certificate of registration

7. To ensure that no employee is discriminated against by virtue of :- - Lodging a complaint about an unsafe condition at the workplace. - Being an active member of a health safety committee. To establish a health and safety committee if the workplace employs 20 or more workers. Not to deduct employee’s remuneration for things done or provided for health and safety. To carry out workplace health and safety audit annually.

8. 2. General Duties of Self Employed Persons
Take precautions while undertaking work operations. Use safe work systems and procedures at the workplace. Comply with any relevant safety and health rules under the Act. Report to the DOSHS any hazards, accidents, dangerous occurrences and occupational diseases. To safeguard the safety of non-employees.

9. 3. General Duties of Employees
Ensure personal safety and health at the workplace. Co-operate with the employer with respect to the safety and health at the workplace. Use personal protective equipment and appliances adequately. Comply with any relevant with any safety and health rules under the Act. Report to the supervisor, hazardous situations. Not to interfere with or misuse provisions that are for his safety and health. Not to create hazards by bad behavior, practical jokes etc.

10. 4. General Duties of Designers, Manufacturers, Importers, Suppliers and Installers.
Ensure safe design of items to be used at workplaces. Carry out/arrange for thorough examination and testing to ensure safety. Provide health and safety information about the items to be used at workplaces. Ensure items to be used at workplaces are in safe working condition.

11. ADMINISTRATION OF THE ACT
The Act is administered by the Director of Occupational Safety and Health Services. Duties of the Director Ex officio member and secretary of the National Council for Occupational Safety and Health (NACOSH). Development of a 5 year strategic plan for Occupational Safety and Health (OSH) promotion. Constitute a Technical Advisory Committee. Promote education, training, establish OSH institute and collect data on OSH. Conduct directly or in collaboration with other persons or bodies research on OSH. Issue OSHOs with certificate of authorization.

12. Issue certificate of approval to :-
Persons approved for examination of testing plants and equipments.
Persons approved for medical examination i.e. Designated Health Practitioners (DHP’s) and medical surveillance of workers.
Persons approved for fire audits (fire auditors).
Persons approved for safety and health audits (safety advisors) of workplaces.
Persons approved for air quality monitoring (air quality monitors).
Institutions approved for training in OSH, fire safety and first aid.
Laboratories approved for testing, equipment calibration and analysis of OSH specimens, samples.

13. ENFORCEMENT OF THE ACT
The Act is enforced by Occupational Safety and Health Officers (OSHO’s). Duties and Powers of OSHOs. Enter, inspect and examine workplaces. Inform/notify occupier or any other person in authority of his arrival at the workplace. Investigate incidences related to OSH. Take photographs, measurements, recordings and statements. Take samples from workplaces for analysis if necessary. Apprehend with the help of a police officer. Require production of registers, certificates and other documents for purposes of OSH.

14. Require any person at the workplace to give information regarding the workplace. Not to disclose information or complaint source. Has indemnity if he is executing his rightful duties. Carry out medical examination if he is a medical practitioner. Deal with hazardous situation by seizure of an item/or disabling a process. Serve documents i.e. prohibition notices, improvement notices and summonses. Conduct legal proceedings (prosecute) in a court of law. The prosecutorial powers are delegated taking cognizance of article 157. Adduce evidence in the court of law.

15. The worker and employer just like any other person is has a right to fair administrative action pursuant to article 47 of the Constitution. Being public servants, the Director and officers under him are bound by article 232 o f the Constitution to uphold values and principles of public service bearing in mind provisions of article 47 in the discharge of duties outlined in OSHA, Section 31 of the 6th schedule of the Constitution provides for transition of prosecutorial powers from the Attorney General to DPP. Article 157 of the Constitution establishes the office Director of Public Prosecutions (DPP) to whom powers of prosecution of all criminal cases is vested.

16. National Council for Occupational Safety and Health (NACOSH)
Functions of NACOSH.
Formulation and development of national OSH policy.
Proposals of OSH to international bodies like ILO etc.
Review of provisions of the Act.
Statistical analysis of OSH deaths and injuries.
Promotion of best OSH practice and culture.
Publication of OSH standards and specifications.

17. Technical Advisory Committee (TAC).
Functions of TAC Approve persons and ensure ethics for:- - OSH audits (by OSH advisors) - Fire audits (by fire auditors) - Plant examinations (by approved plant inspectors) - Air quality monitoring (by air quality monitors) Approve institutions for:- - OSH training - Fire safety training - First aid training - Laboratory services and calibration Approve syllabi for trainings. Publish, promote education and training on OSH.

18. GENERAL PROVISIONS OF HEALTH AT WORKPLACES.
To be kept clean and free of dirt. Workplace walls are to be kept oil painted after every 5 years or white/colour washed yearly. No overcrowding. Every workplace be well ventilated. Adequate lighting to be provided. Where there is a possibility of wet floor, drainage should be provided. Sanitary conveniences should be provided and maintained for the use of workers. The conveniences should be clean, well lit, painted and with separate approaches for both gender.

19. MACHINERY SAFETY
All dangerous parts of prime movers, transmission machinery, other machinery and tools to be adequately encased, guarded or fenced. Controls of machinery and tools be located in a manner as to minimize accidental operations which would otherwise be hazardous. A 50cm distance should be maintained from a fixed structure to a traversing part of a self-acting machine.

20. UNGUARDED MACHINERY

21. A fatal accident that was caused by unguarded machinery

23. Examples of good guarding

24. PLANT SAFETY
Hoists and Lifts - Statutory examination after every 6 months or after extensive repairs. - Be marked with Maximum Permissible Load (MPL). - Must have interlocking gates. Chains, Ropes and Lifting tackle - Statutory examination after every 6 months. - To have safe working load (SWL) marked. - To be annealed after 14 months as appropriate. Cranes and other Lifting Machines - Statutory examination after every 12 months or after extensive repairs. - Be marked with SWL or a table/indicator of SWL.

25. Tower crane
Gantry crane
Mobile cranes

27. Steam Boilers - Statutory examination after every 12 months when cold and under normal pressure or after extensive repairs. - Be marked with maximum permissible/safe working pressure (SWP). - Must have a safety valve, pressure gauge, water gauge, serial number and low water alarm device. Steam Receivers and Steam Containers - Statutory examination after every 24 months or after extensive repairs. - Must have a pressure reducing valve, a suitable safety valve, steam pressure gauge, stop valve and serial number.

28. Steam Boiler

29. Air Receivers - Statutory examination after every 24 months or after extensive repairs. - Be marked with safe working pressure (SWP). - Must have a safety valve, pressure gauge, suitable manhole/hand hole and serial number. Cylinders for compressed, liquefied and dissolved gases - Statutory examination after repairs, after every 2 years (for corrosive gases), after every 5 years (for other gases) or before charging for 1st time. - Must be marked with permissible maximum weight of the gas and name of gas. - Must show owner’s name, registered number and permissible charging pressure.

30. Air Receiver

31. Corrosive gases
Flammable gases
Asphyxiants
Ammonia
Butane
Hydrogen cyanide
Chlorine
Propane
Carbon monoxide
Fluorine
Methane
Carbon dioxide
Nitrogen dioxide
Acetylene

32. Refrigeration Plants - Statutory examination after every 12 months or after extensive repairs.
Cold rooms to have control valves situated outside and adequate means of opening from inside to be provided.
Those refrigeration plants with compressors to have pressure relief devices and pressure gauges.

33. GENERAL SAFETY PROVISIONS
All vessels, structures and pits containing dangerous liquids be securely fenced and labeled to prevent fall of persons. All goods, articles and substances to be stacked as to ensure stability. All ladders shall be securely fixed in a position, on a place of level footing, properly supported, extend at least 1m above landing. All workplaces shall be accessed by a safe means.

34. Fire Safety
Highly flammable substances to be kept in a fire resistant store or outside any occupied building. Highly flammable liquids to be conveyed in an enclosure. No smoking near, no fire/flames near highly flammable materials. Work to be undertaken in confined spaces only if :- - adequate means of egress is provided and if free of dangerous fumes. - a work permit has been filled, persons working therein have adequate breathing apparatus and reviving apparatus is available. Every workplace:- - To have means for extinguishing fire. - To have persons trained in fire fighting. - To have marked adequate means of fire escape which either slides when opening or opens outwards. - To have evacuation procedure.

35. Chemical Safety
The supplier, distributor, conveyor and employer shall ensure chemicals and other toxic substances are packaged, conveyed, handled and distributed in a safe manner and company of an appropriate labels and Material Safety Data Sheets (MSDS). Such MSDS shall be availed to the workers. Workplaces where fumes, dusts and impurities accumulate must have ventilation systems and means of exhausting the substances. No such air contaminants from a workroom should be allowed into the air without appropriate treatment to prevent pollution and ill-effect to life and property.

36. Welfare provisions
Every occupier is to provide accommodation for clothing not worn during working hours. Every occupier is to provide sitting facilities for workers who perform duties while standing. First- aid facilities to be provided. Special Provisions of Health, Safety and Welfare Permit to work for hazardous work processes. Persons of age below 18 years are not allowed to perform hazardous work. Apprentices and indentured persons to be supervised.

37. Washing area Lockers for keeping protective clothing
Lockers for keeping personal clothing
Washing area

38. An example of “permit to work”
This is to confirm that today the……… mr/mrs/miss …………employment N0……… of ……… section has been permitted to work at/in ………… which poses the following hazards ……………. and as such should take the following precautions……………before the work commences.
Issued by: ……… Signature……… date .…………..
Employee’s Signature:……… date…………

39. Adequate training to workers to be offered before a worker is engaged in the work activity. No feeding/ eating is allowed in some work activities. Every employee to be provided with adequate and suitable personal protective clothing and appliances for the work activity performed. Medical surveillance and examination is a necessity for certain classified trades. Special Applications Premises where part of the building is separate workplace. Premises in which steam boilers are used. Premises in which hoists and lifts are used. Platforms erected over water.

40. Offences, Penalties and legal proceedings
The general penalty for offences without express penalty is a fine not exceeding 300,000/- or jail term not exceeding 3 months or both fine and term. Should commitment of offence proceed after conviction, a daily fine not exceeding 10,000/- is instituted. A fine not exceeding 1,000,000/- or a jail term not exceeding 12 months instituted on the event of an accident due to the occupier having contravened provisions of the Act . A fine not exceeding 200,000/- or 6 months jail or both in respect of forgeries, false declaration, conniving, pretence and lies . Any person is deemed a worker if lawfully within the precincts of a workplace while work is ongoing.

41. The state is duty-bound to ensure access to justice by any party in matters relating to occupational safety and health required by article 48. Persons coming within purview of action under the provisions of the OSHA, 2007 have rights as enshrined in:- - article 49 – Rights of accused/arrested persons - article 50 – Right of access to fair hearing - and article 51 – Rights of persons detained/held in custody or imprisoned.

42. Miscellaneous Provisions
Posting of Abstracts, Rules and Notices:- - Abstract of the Act - Cellulose and flammable liquids rules - Building Operations and works of Engineering Construction Rules - Warning Notices Every workplace to have and maintain the general register All buildings erected for the purpose of as a workplace must have the architectural plans approved by DOHSS. Establishment of an OSH fund.

43. The section 129 of OSHA, 2007 provides for savings under the factories and Other Places of Work Act and the repeal of Cap Anything done under the Factories and Other Places of Work Act Cap. 514 is deemed to have been done under the OSHA, Subsidiary legislation issued under Cap. 514 is applicable under OSHA, 2007.

45. In Conclusion
OSHA, 2007 is compliant to the Constitution of Kenya, 2010 by being explicitly in line with the following article and section of Schedules:- articles 41, 47, 48, 49, 50, 51, 157, 232, section 7 of the 6th Schedule and section 31 of the 6th Schedule.

46. The End. Thanks for keen attention.